"No greater legal monstrosity than a secret statute"

An executive order is the product of the executive, and he has the authority to revoke at will. So, suppose an executive publicly declares some order that prohibits certain interrogation techniques and then changes his mind, publicly declaring instead that they should be now permissible. Those interested in the content of the law, its consequences for public policy, its ramifications for international relations, etc., will first turn to X and then to Y to acquire guidance and direction about what they should do. That’s what the publicity condition on legal principles is for, because if law is to serve as an instrument by the people for the people, the people must know and have access to it. So, whether one agrees with X or Y, at least one knows our government’s standing with respect to that area of law.

The current executive in the U.S. has a different take on matters. His Justice Department disclosed yesterday that not only can the executive change his mind about an executive order, that changing of his mind does not need to be publicized. The New York Times reports, “At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.”

So while the initial executive order is made public, the actual functioning directive to all agencies under executive power can operate in secret. This understanding of executive privilege has wide ranging adverse consequences. For example, while citizens may believe, because of a public executive order, that the U.S. does not condone some heinous act X, all agencies under the executive may through some secret directive actually condone and engage in X. To point out just one concern, how can a responsible citizenry protest and attempt to change a law it cannot know about?

We already know, because of the fine work of the Boston Globe’s Charlie Savage, about the Bush administration’s abusive use of executive signing statements. Their excessive employment can be considered a form of secrecy, but technically they are not since the executive’s statements are a matter of public record. However, yesterday’s disclosure marks a whole new path to secrecy.

In the nature of things, the Justice Department official justified this interpretation of the executive’s powers by invoking the need for secrecy in matters of national security. However, even if we suppose that in matters involving dire necessity secrecy is justified, the powers referred to are general and are unconstrained, as a matter of law, by the substance of the matter at hand. We can see this with the Bush Administration’s handling of the OLC torture memos. What reason could be given to make those legal documents classified, except to save the administration from public ridicule?

At the heart of a discussion on the conditions required for a legal system to exist, Lon L. Fuller, a noted legal philosopher, declared that “there can be no greater legal monstrosity than a secret statute.” Who, except the shameless and corrupt, can disagree with that?